Jana R. Cullefer v. Department of Agriculture ( 2016 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    JANA R. CULLEFER,                               DOCKET NUMBER
    Appellant,                        DA-0752-16-0089-I-1
    v.
    DEPARTMENT OF AGRICULTURE,                      DATE: November 15, 2016
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Jana R. Cullefer, Van Buren, Arkansas, pro se.
    Jose Calvo, Washington, D.C., 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
    affirmed her removal. For the reasons set forth below, the appellant’s petition for
    review is DISMISSED as untimely filed without good cause shown.               5 C.F.R.
    § 1201.114(e), (g).
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    BACKGROUND
    ¶2         The agency removed the appellant from the GS-9 position of Consumer
    Safety Inspector based on the charges of absence without leave for 143.75 hours
    and 12 instances of failure to follow leave procedures. Initial Appeal File (IAF),
    Tab 5 at 23, 24, 76. The appellant appealed the agency action. IAF, Tabs 1-2.
    Based on the developed record, including the testimony at the hearing, the
    administrative judge issued an initial decision that affirmed the agency action.
    IAF, Tab 23, Initial Decision (ID). The initial decision, issued on June 28, 2016,
    informed the appellant that a petition for review must be filed with the Board by
    August 2, 2016, or, if the appellant proved that she received the initial decision
    more than 5 days after the date it was issued, then she could file a petition for
    review within 30 days of the date that she actually received the initial decision.
    ID at 21.
    ¶3         The appellant filed a petition for review on August 11, 2016, stating that
    she received the initial decision on July 1, 2016. 2 Petition for Review (PFR) File,
    Tab 1. The Clerk of the Board informed the appellant that her petition appeared
    to be untimely filed, and afforded her the opportunity to file a motion to accept
    the filing as timely and/or to waive the time limit for good cause. PFR File,
    Tab 2.      The Clerk also informed the appellant that such a motion must be
    accompanied by a statement signed under penalty of perjury or an affidavit. 
    Id. Further, the
    Clerk informed the appellant that such motion and properly signed
    statement must be postmarked, if mailed, or sent by facsimile on or before
    August 27, 2016. 
    Id. 2 Although
    the appellant claims that she received the initial decision on July 1, 2016,
    because the appellant was a registered e-filer, she is deemed to have received the initial
    decision on the date of electronic submission, or June 28, 2016. IAF, Tab 24; 5 C.F.R.
    § 1201.14(m)(2).
    3
    ¶4         The agency filed a response to the appellant’s petition for review, moving
    that it be dismissed as untimely filed. PFR File, Tab 3. On September 6, 2016,
    the appellant filed a reply to the agency’s response, alleging that she does not
    have “constant nor reliable internet access.” PFR File, Tab 4. She stated that she
    had tried to submit her petition electronically on August 1, 2016, and when her
    submission did not appear online by August 3, 2016, she contacted the Board’s
    office for technical support. 
    Id. She states
    that, after continuing to monitor the
    Board’s e-Appeal Repository, she eventually was able to submit her petition
    electronically. 
    Id. DISCUSSION OF
    ARGUMENTS ON REVIEW
    ¶5         A petition for review generally must be filed within 35 days after the date
    of the issuance of the initial decision, or if the party filing the petition shows that
    the initial decision was received more than 5 days after it was issued, within
    30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e). The
    initial decision was issued on June 28, 2016, and the petition for review was due
    by August 1, 2016. Thus, the appellant filed her petition for review 10 days late,
    on August 11, 2016. PFR File, Tab 1.
    ¶6         The Board will waive the time limit for filing a petition for review only
    upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.113(d),
    1201.114(f).   The party who submits an untimely petition for review has the
    burden of establishing good cause for the untimely filing by showing that she
    exercised due diligence or ordinary prudence under the particular circumstances
    of the case. Sanders v. Department of the Treasury, 88 M.S.P.R. 370, ¶ 5 (2001).
    To determine whether a party has shown good cause, the Board will consider the
    length of the delay, the reasonableness of the party’s excuse and her showing of
    due diligence, whether she is proceeding pro se, and whether she has presented
    evidence of the existence of circumstances beyond her control that affected her
    ability to comply with the time limits or of unavoidable casualty or misfortune
    4
    which similarly shows a causal relationship to her inability to timely file her
    petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62–63 (1995),
    aff’d, 
    79 F.3d 1167
    (Fed. Cir. 1996) (Table).
    ¶7         Under limited circumstances, the Board will excuse delays in filing caused
    by difficulties encountered with the e-Appeal system.                E.g., Salazar v.
    Department of the Army, 115 M.S.P.R. 296, ¶¶ 6–8 (2010) (excusing a filing
    delay when the appellant alleged that he attempted to electronically file his
    petition for review on time and the e-Appeal system showed that he had, in fact,
    accessed the system prior to the date that his petition was due; it was possible to
    exit the system without receiving a clear warning that he had not yet filed his
    pleading; and once he became aware that his petition had not been filed, he
    contacted the Board and submitted a petition for review that included an
    explanation    of   his       untimeliness);   Lamb   v.   Office     of   Personnel
    Management, 110 M.S.P.R. 415, ¶ 9 (2009) (excusing the untimely filing of an
    appeal when the appellant reasonably believed he filed timely by completing all
    the questions on the online appeal form and exited the website without receiving
    a clear warning that his appeal was not filed).        However, we find that the
    appellant’s failure to complete the submission of the petition for review is not
    excusable in this instance.
    ¶8         According to the Board’s e-Appeal logs, the appellant initially started a
    pleading on July 27, 2016, but did not submit a petition. Although she reentered
    the system on August 1, 2016, the deadline for filing a petition for review, she
    did not submit her petition on that date.       She did submit three tickets to the
    Board’s Information Resources Management technical support group on
    August 3, 2016, and one of those tickets appears to be an attempt to file her
    petition for review using a ticket.        However, by that date the petition was
    untimely. Prior to filing the petition for review, the appellant successfully filed
    pleadings in the e-Appeal system.         IAF, Tabs 1, 17, 20.      According to the
    5
    e-Appeal database, after each filing, the e-Appeal system generated an email
    within minutes to the appellant and her representative, if she had one, advising
    them of the new pleading.
    ¶9         Given her familiarity with the e-Appeal system, due diligence and ordinary
    prudence required that the appellant promptly follow up to determine the status of
    the petition for review when she did not receive an email advising her that it had
    been filed as she had for her past Board submissions.     The appellant’s tickets
    submitted to e-Appeal technical support suggest that she was aware that her
    petition had not been filed successfully. Nonetheless, the appellant did not file
    her petition for review until 8 days after August 3, 2016, when by her own actions
    she knew or should have known that she had not filed her petition for review in
    the e-Appeal system.     PFR File, Tab 1.     The appellant has not shown any
    circumstances beyond her control such as unavoidable casualty or misfortune that
    affected her ability to comply with the time limits to file a petition for review,
    and to file immediately after she was aware that her petition had not been
    successfully filed. Livingston v. Office of Personnel Management, 105 M.S.P.R.
    314, ¶ 9 (2007) (finding good cause for the untimely filing of a petition for
    review in the e-Appeal system when the appellant created a draft of the petition,
    was able to exit the Board’s website without receiving a clear warning that he
    had not yet filed his pleading, and acted with due diligence in submitting the
    relevant documents when he became aware of the problem).
    ¶10        Further, the petition was not accompanied by a motion that showed good
    cause for its untimely filing. PFR File, Tab 1. Unless the Board previously has
    granted an extension, an untimely petition for review must be accompanied by
    such a motion, which must be accompanied by an affidavit or sworn statement
    that includes the reasons for failing to request an extension before the deadline
    for the submission, and a specific and detailed description of the circumstances
    causing the late filing, accompanied by supporting documentation or other
    6
    evidence. 5 C.F.R. § 1201.114(g). After receiving the petition for review, the
    Board provided the appellant with notice of these requirements and instructed her
    to file the motion and accompanying documents on or before August 27, 2016, or
    the Board might dismiss her petition as untimely. PFR File, Tab 2 (with attached
    motion form).    The appellant’s apparent response to the Board’s notice was
    10 days late and, as explained above, did not include a sufficient explanation for
    the untimeliness of the petition. PFR File, Tab 4.
    ¶11        Accordingly, we dismiss the petition for review as untimely filed. This is
    the final decision of the Merit Systems Protection Board regarding the timeliness
    of the petition for review. The initial decision remains the final decision of the
    Board regarding the removal appeal.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    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). 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
    7
    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
    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:                             ______________________________
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 11/15/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021