Victor DeJesus Cordero v. Department of Veterans Affairs ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VICTOR DEJESUS CORDERO, DOCKET NUMBERS
Appellant, AT-1221-15-0607-W-1
AT-0752-13-0986-B-2
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: December 7, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Victor DeJesus Cordero, Buffalo, New York, pro se.
Jeremy Vance Tramel, Decatur, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed petitions for review of the initial decisions in the
above-captioned appeals. For the reasons discussed below, we JOIN the two
appeals, 2 GRANT the appellant’s petitions for review, VACATE the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite case processing and will not adversely affect the parties’ int erests.
2
decisions, and REMAND the appeals to the regional office for further
adjudication in accordance with this Order.
BACKGROUND
¶2 Effective January 9, 2013, the agency removed the appellant from his
Housekeeping Aid position based upon the charges of failure to follow proper
leave requesting procedures and absence without leave. Cordero v. Department
of Veterans Affairs, MSPB Docket No. AT-0752-13-0986-I-1, Initial Appeal File
(IAF), Tab 7 at 12, 16-17. On July 7, 2013, he appealed his removal to the
Board. IAF, Tab 1. The administrative judge dismissed the appeal as untimely
filed without good cause shown for the delay. IAF, Tab 9, Initial Decision at 2-3.
The appellant filed a petition for review asserting, among other things, that his
untimely filing was due to a medical condition. Cordero v. Department of
Veterans Affairs, MSPB Docket No. AT-0752-13-0986-I-1, Petition for Review
File, Tab 1. The Board remanded the appeal for further adjudication, finding that,
although the appeal was untimely, the appellant did not receive sufficient notice
regarding his burden of establishing good cause for the untimeliness of his appeal
due to a medical condition. Cordero v. Department of Veterans Affairs, MSPB
Docket No. AT-0752-13-0986-I-1, Remand Order at 3-7 (Mar. 28, 2014). On
remand, the administrative judge dismissed the removal appeal without prejudice
to refiling, finding that the appellant’s medical condition prevented him from
participating in the appeal. Cordero v. Department of Veterans Affairs,
MSPB Docket No. AT-0752-13-0986-B-1, Remand Initial Decision at 2-3
(July 24, 2014). She indicated that the appellant had the right to refile until the
earliest of the following events occurred: (1) the appellant was able to
understand the Board proceedings and/or assist his designated representative in
proceedings before the Board; (2) a guardian ad litem or conservator was
Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 1 n.1 (2015); 5 C.F.R.
§ 1201.36(a)-(b). We find that these criteria are satisfied here.
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appointed to represent the appellant’s legal interests by a court of competent
jurisdiction; or (3) 1 year elapsed from the date of issuance of the initial decision.
Id.
¶3 The record reflects that, on June 17, 2014, after the issuance of the initial
decision, the appellant filed a formal equal employment opportunity (EEO)
complaint in which he asserted that the agency’s decision to remove him was
discriminatory based upon his disability and his race and was taken in retaliation
for a prior EEO complaint. Cordero v. Department of Veterans Affairs,
MSPB Docket No. AT-1221-15-0607-W-1, Appeal File (W-1 AF), Tab 6 at 19. 3
On April 30, 2015, the agency issued a final agency decision (FAD) finding that
the appellant had not been discriminated against and provided Board appeal rights
with respect to his mixed case. Id. at 19-28.
¶4 On June 2, 2015, less than 1 year after the issuance of the remand initial
decision, the appellant filed another appeal challenging his removal and requested
a hearing. W-1 AF, Tab 1. He asserted, among other things, that the agency
retaliated against him for whistleblowing and that he had filed a whistleblowing
complaint with the Office of Special Counsel (OSC) on March 4, 2015, for which
he had not received a closeout letter. Id. at 3-4. The agency file in this appeal
contained a letter from OSC, dated June 15, 2015, which explained its
preliminary determination to close its file regarding the appellant’s complaint that
his January 9, 2013 removal violated his due process rights and constituted
discrimination and reprisal for protected EEO activity. W-1 AF, Tab 7 at 92-94.
The letter further stated that, if the appellant did not have any further comments,
his case would be closed in 13 days and he would be notified of his further rights.
Id. at 93-94. The administrative judge issued an order to show cause why this
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The agency’s Office of Resolution Management accepted, among other claims, the
portion of the appellant’s complaint that raised his removal claim, despite the fact that
he had not timely initiated EEO contact within the 45-day regulatory timeframe based
upon the appellant’s allegation and medical documentation of incapacity. W -1 AF,
Tab 6 at 19; see 29 C.F.R. § 1614.105(a).
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individual right of action (IRA) appeal should not be dismissed for lack of
jurisdiction because the appellant previously filed a removal appeal. W-1 AF,
Tab 11 at 1-2. The appellant responded that he repeatedly expressed that his
“intentions were clear” that the Board has jurisdiction over his claims and that he
should not have to refile his appeal. W-1 AF, Tab 12 at 5.
¶5 Without holding the appellant’s requested hearing, the adm inistrative judge
dismissed the IRA appeal for lack of jurisdiction and as moot, but he directed the
refiling of the removal appeal, which previously had been dismissed without
prejudice to refiling. W-1 AF, Tab 13, Initial Decision at 3. The appellant has
filed a petition for review of this initial decision, primarily arguing that the Board
has jurisdiction over his appeal and that he does not wish to pursue this matter
through the grievance process or the Equal Employment Opportunity Commission
(EEOC). Cordero v. Department of Veterans Affairs, MSPB Docket No.
AT-1221-15-0607-W-1, Petition for Review (W-1 PFR) File, Tab 1. The agency
has filed an opposition to the petition. W-1 PFR File, Tab 3.
¶6 Meanwhile, the regional office refiled the removal appeal as directed by the
administrative judge in his initial decision on the IRA appeal. Cordero v.
Department of Veterans Affairs, MSPB Docket No. AT-0752-13-0986-B-2,
Remand File (RF), Tabs 1-2. The administrative judge assigned to the removal
appeal subsequently dismissed it without prejudice to refiling pending the
disposition of the appellant’s petition for review in the IRA appeal because she
found that the appellant did not want to pursue the removal appeal until the Board
issued a decision in his IRA appeal. RF, Tab 13, Remand Initial Decision (RID)
at 3. The appellant has filed a petition for review of this initial decision in which
he asserts, among other things, that, when he filed his IRA appeal, he was
attempting to file the same claims that he originally filed in his removal appeal
but that he also wanted to include claims of discrimination and those from his
OSC complaint. Cordero v. Department of Veterans Affairs, MSPB Docket No.
5
AT-0752-13-0986-B-2, Petition for Review File, Tab 1 at 5. The agency has not
filed a response to this petition.
ANALYSIS
¶7 Under 5 U.S.C. § 7121(g), an appellant who has been subjected to an action
appealable to the Board, and who alleges that he has been affected by a prohibited
personnel practice in retaliation for whistleblowing under 5 U.S.C. § 2302(b)(8)
or in retaliation for other protected activity under 5 U.S.C. § 2302(b)(9), may
elect one, and only one, of the following remedies: (1) an appeal to the Board
under 5 U.S.C. § 7701; (2) a grievance filed under the provisions of a negotiated
grievance procedure; or (3) a complaint following the procedures for seeking
corrective action from OSC under 5 U.S.C. chapter 12, subchapters II and III.
See Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶ 15 (2016);
5 C.F.R. § 1209.2(d)(1). The remedy that the aggrieved employee seeks first is
deemed an election of that procedure and precludes pursuing the matter in either
of the other two forums. Edwards v. Department of the Air Force, 120 M.S.P.R.
307, ¶ 12 (2013). By statute, an appellant has elected a direct Board appeal if he
“has timely filed a notice of appeal under the applicable appellate procedures.”
5 U.S.C. § 7121(g)(4)(A) (emphasis added); Shannon v. Department of Homeland
Security, 100 M.S.P.R. 629, ¶ 17 (2005). If there is good cause shown for the
untimely filing, the election is valid. See Szajkovics v. Department of
Transportation, 90 M.S.P.R. 643, ¶¶ 10-12 (2001) (finding that there was good
cause for the appellant’s untimely Board appeal because he was only granted
direct Board appeal rights via a retroactive statute and thus he made a valid
election to file a direct Board appeal).
¶8 Likewise, by statute, where an employee alleges that he was subjected to an
otherwise appealable adverse action based on prohibited discrimination under
5 U.S.C. § 2302(b)(1), the employee’s choice of forum is among: (1) the
negotiated grievance procedure; (2) a Board appeal; or (3) a formal EEO
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complaint. 5 U.S.C. § 7121(d); Galloway v. Social Security Administration,
111 M.S.P.R. 78, ¶ 14 (2009). Whichever is filed first is deemed a binding
election to proceed in that forum. Carey v. Department of the Interior,
103 M.S.P.R. 534, ¶ 11 (2006). The Board defers to the determination of the
employing agency and the EEOC regarding the timeliness of discrimination
complaints. E.g., Cloutier v. U.S. Postal Service, 89 M.S.P.R. 411, ¶ 6 (2001).
¶9 Here, the administrative judge has not yet addressed the issue of whether
there was good cause for the appellant’s untimely filing of his removal appeal.
RID. This finding would affect the determination of whether the appellant
elected this remedy or an IRA appeal following his OSC complaint . Additionally,
because evidence of the appellant’s EEO complaint was first submitted when the
agency included the FAD in the record of his IRA appeal, the administrative
judge has not considered whether the appellant elected to pursue his EEO remedy.
RID; W-1 AF, Tab 6 at 19-28. Accordingly, it is necessary to remand these
appeals for further development of the record regarding which remedy the
appellant elected. See Rosso v. Department of Homeland Security, 113 M.S.P.R.
271, ¶ 11 (2010) (remanding the appeal where it was not clear whether the
appellant raised his claims before OSC or filed an EEO complaint and attempted
to proceed before the EEOC). In determining the appellant’s election, the
administrative judge must consider whether any election was knowing and
informed. 5 U.S.C. § 7121(d), (g); see Agoranos v. Department of Justice,
119 M.S.P.R. 498, ¶¶ 15‑16 (2013).
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ORDER
¶10 For the reasons discussed above, we remand these appeals to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.