Jerry Rand v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERRY L. RAND, DOCKET NUMBER
Appellant, DA-0714-23-0046-I-1
v.
DEPARTMENT OF VETERANS DATE: January 8, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Jerry L. Rand , Houston, Texas, pro se.
Daniel Morvant , Esquire, and Mackenzie Novak , Esquire, Denver,
Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 38 U.S.C. § 714 removal appeal as untimely filed. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
**
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential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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initial decision, and REMAND the appeal to the Dallas Regional Office for
adjudication on the merits.
BACKGROUND
¶2 The agency removed the appellant from his position as a Housekeeping Aid
Supervisor, effective October 24, 2022, under the authority of 38 U.S.C. § 714.
Initial Appeal File (IAF), Tab 8 at 13-16. In the decision letter, the agency
advised the appellant that he could file an appeal with the Board challenging his
removal no later than 10 business days after the date of the removal action.
Id. at 15. The appellant acknowledged receipt of the removal decision on
October 24, 2022. Id. at 16. The appellant subsequently electronically filed a
Board appeal on November 14, 2022. IAF, Tab 1 at 1. The appellant alleged
that his removal was the product of unlawful discrimination based on his
disability on his appeal form. Id. at 5.
¶3 The administrative judge issued an order addressing timeliness in which he
informed the appellant that he had 10 business days from the October 24, 2022
effective date of his removal to file his appeal, acknowledged the filing date of
the appeal as November 14, 2022, observed that it appeared the appellant had
untimely filed his appeal, described the circumstances under which the deadline
could be waived or tolled, and ordered both parties to respond. IAF, Tab 3.
Both parties filed responses to the order. IAF, Tabs 6-7. In his response, the
appellant did not address the timeliness of his appeal. IAF, Tab 6 at 2.
¶4 The administrative judge subsequently issued an initial decision finding the
appeal was untimely filed by 4 days. IAF, Tab 9, Initial Decision (ID) at 3. He
reasoned that under 38 U.S.C. § 714, the appellant had 10 business days from the
date of his removal to file a Board appeal, that equitable tolling did not apply to
extend the appellant’s filing deadline, and that the appellant had failed to show
that good cause existed for this delay in filing his appeal. ID at 3-4.
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¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review, and the appellant has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An appellant files what is known as a mixed case when he seeks review of a
matter within the Board’s appellate jurisdiction and also raises a claim of
discrimination or retaliation in violation of equal employment opportunity (EEO)
statutes. Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 12, 25. An
appellant has two options when filing a mixed case: (1) he may initially file a
mixed-case EEO complaint with his employing agency followed by an appeal to
the Board; or (2) he may file a mixed-case appeal with the Board and raise his
discrimination claims in connection with that appeal. Id., ¶ 13. An employee
may file either a mixed-case complaint or a mixed-case appeal, but not both, and
whichever is filed first is deemed an election to proceed in that forum. Id. Here,
the appellant filed an appeal with the Board challenging his removal on
November 14, 2022. IAF, Tab 1.
¶7 Shortly before the initial decision in this matter was issued, the Board held
that when the agency takes an action under 38 U.S.C. § 714, and the appellant
files a mixed case appeal, the procedures contained within 5 U.S.C. § 7702 and
the Board’s implementing regulations apply. Davis v. Department of Veterans
Affairs, 2022 MSPB 45, ¶ 19; Wilson, 2022 MSPB 7, ¶¶ 11-25. Under those
regulations, if the appellant has not filed a formal discrimination complaint with
the agency and raises his discrimination claim for the first time with the Board,
an appeal is due 30 days after the effective date of the agency’s action or 30 days
after the date of the appellant’s receipt of the agency’s decision, whichever is
later. Davis, 2022 MSPB 45, ¶¶ 17-19; 5 C.F.R. § 1201.154(a).
¶8 The appellant received the agency’s removal decision on October 24, 2022,
the same day his removal became effective. IAF, Tab 8 at 13, 16. The appellant
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raised a claim of discrimination in connection with his removal in his initial
appeal and he did not file a formal discrimination complaint with the agency
regarding his removal. Id. at 12; IAF, Tab 1 at 5. Therefore, the appellant’s
30-day time period for filing a Board appeal began on October 24, 2022. The
appellant filed his mixed-case appeal 21 days later, on November 14, 2022.
IAF, Tab 1. Thus, the appeal was timely filed. Accordingly, we remand the
appellant’s mixed case appeal for adjudication on the merits.
ORDER
¶9 For the reasons discussed above, we remand this case to the Dallas Regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.