Barbara Kinnard v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA KINNARD, DOCKET NUMBER
Appellant, AT-1221-23-0163-W-1
v.
DEPARTMENT OF VETERANS DATE: August 27, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Seth J. Colon , Esquire, and Kathleen Pohlid , Esquire, Nashville, Tennessee,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal (IRA) as untimely filed. For the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 On October 12, 2022, the appellant, a GS-06 Advanced Medical Support
Assistant, filed a complaint with the Office of Special Counsel (OSC), alleging
that, in the period from 2015 to 2018, she filed OSC and equal employment
opportunity (EEO) complaints and disclosed nepotism, favoritism, retaliation for
whistleblowing, the agency’s failure to accommodate her disability, and a hostile
work environment, causing the agency to retaliate against her by issuing an
admonishment, charging her with absence without leave (AWOL), denying her
request for training and promotional opportunities, subjecting her to an
investigation, and proposing her removal. Initial Appeal File (IAF), Tab 1 at 4,
10, 17-18. In an October 12, 2022 email attaching its letters, OSC informed the
appellant that it had terminated its inquiry into her allegations and that she had a
right to file an IRA appeal with the Board within 65 days of the date of its
close-out letter. IAF, Tab 10 at 12-16.
¶3 On January 18, 2023, the appellant filed the instant IRA appeal with the
Board. IAF, Tab 1. Attached to the appeal was an October 12, 2022 email from
OSC attaching the aforementioned letters. Id. at 12. In a January 25, 2023 order,
the administrative judge notified the appellant that her IRA appeal appeared to
have been filed approximately 1 month late and ordered her to submit evidence
and argument on the timeliness issue. IAF, Tab 7 at 1-2. The appellant
responded that she filed her OSC complaint on October 12, 2022, and emailed
OSC on January 3, 2023, for an update on the status of her complaint. IAF,
Tab 10 at 5, Tab 11 at 4. That same day, OSC informed her that her case had
been closed on October 12, 2022, and reattached its letters and its October 12,
2022 transmittal email. IAF, Tab 1 at 13-14, Tab 11 at 4. The appellant
3
acknowledged receipt of OSC’s January 3, 2023 email attachments and noted that
she had not received prior emails or a response from OSC regarding her case.
IAF, Tab 1 at 16. Without holding the appellant’s requested hearing, the
administrative judge dismissed the appeal as untimely filed, finding that the
appellant did not file her appeal within 65 days after the issuance of OSC’s
close-out letter or allege circumstances warranting invocation of the doctrine of
equitable tolling. IAF, Tab 19, Initial Decision (ID) at 3-5.
¶4 The appellant has filed a petition for review of the initial decision. 2 Petition
for Review (PFR) File, Tab 1. She reiterates that she did not receive OSC’s
October 12, 2022 email attaching its close-out letter and she diligently monitored
her email and actively sought an update from OSC regarding her case; thus, she
demonstrated that the filing deadline should be equitably tolled or that the time
limit should be waived based on good cause shown. 3 Id. at 6-8. The agency has
responded in opposition to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant timely filed her appeal.
¶5 On review, the appellant challenges the administrative judge’s finding that
her appeal was untimely filed because she asserts that she first received email
notification of OSC’s October 12, 2022 close-out letter on January 3, 2023. PFR
2
The appellant’s June 22, 2023 petition for review was untimely filed. However, in
light of the May 17, 2023 initial decision’s incorrect notation of June 22, 2023, as the
finality date, rather than June 21, 2023, ID at 5, the Office of the Clerk of the Board
considered the appellant’s June 22, 2023 petition for review as timely filed, PFR File,
Tab 2 at 1. We find that the appellant’s petition for review was timely filed under the
circumstances presented here.
3
We clarify that the statutory time limit for filing an IRA appeal cannot be waived for
good cause shown because there is no statutory mechanism for doing so. Heimberger v.
Department of Commerce, 121 M.S.P.R. 10, ¶ 9 (2014). However, the filing deadline
might be subject to equitable tolling, under which the filing period is suspended for
equitable reasons, such as when the complainant has been induced or tricked by her
adversary’s misconduct into allowing the deadline to pass. Id., ¶ 10. We have not
reached the issue of equitable tolling here.
4
File, Tab 1 at 7. She notes that she examined her incoming, deleted, and spam
emails from October 1, 2022, to October 20, 2022, but did not find any emails
regarding OSC’s close-out letter. 4 Id.¶6 An appellant may file an IRA appeal with the Board once OSC closes its
investigation into her complaint and no more than 60 days have elapsed since
notification of the closure was provided to her. 5 U.S.C. § 1214(a)(3)(A); see
Heimberger, 121 M.S.P.R. 10, ¶ 6. Under the Board’s regulations implementing
that statutory time limit, an IRA appeal must be filed no later than 65 days after
the date that OSC issues its close-out letter, or, if the letter is received more than
5 days after its issuance, within 60 days of the date of receipt. 5 C.F.R.
§ 1209.5(a)(1); see Heimberger, 121 M.S.P.R. 10, ¶ 6. The appellant bears the
burden of proving by preponderant evidence that she timely filed her appeal.
5 C.F.R. § 1201.57(c)(2); see Pacilli v. Department of Veterans Affairs ,
113 M.S.P.R. 526, ¶ 8, aff’d, 404 F App’x 466 (Fed. Cir. 2010).
¶7 The administrative judge found that the appellant was required to file her
appeal by December 16, 2022, 65 days after OSC issued the October 12, 2022
close-out letter. ID at 3; see 5 U.S.C. § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a)(1).
She found that, when the appellant filed her appeal on January 18, 2023, it was
approximately 1 month late. ID at 3; IAF, Tab 1. Further, she found that,
because the appellant’s delay of almost 3 months to check into the status of her
OSC status complaint shows she was not diligently pursuing her rights, the
appellant did not allege circumstances warranting invocation of the doctrine of
4
For the first time on review, the appellant attaches portions of an “email log”
purportedly showing that she did not receive the October 12, 2022 email from OSC
attaching its close-out letter. PFR File, Tab 1 at 11-20. The Board need not consider
evidence presented for the first time with a petition for review absent a showing that it
was unavailable before the record was closed before the administrative judge despite the
party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980);
5 C.F.R. § 1201.115(d). The appellant does not explain why she did not provide this
document in response to the administrative judge’s timeliness order. Nevertheless, as
discussed below, we find that the appellant timely filed her appeal.
5
equitable tolling. ID at 4. However, such an approach is inconsistent with the
plain language of 5 C.F.R. § 1209.5(a)(1).
¶8 When, as here, the appellant asserts that she did not receive OSC’s
close-out letter within 5 days of its issuance, she must file the appeal within
60 days of the date of receipt. 5 C.F.R. § 1209.5(a)(1). The appellant responded
to the administrative judge’s timeliness order and asserted that her appeal was
timely filed because she did not originally receive OSC’s close-out letter. IAF,
Tab 11 at 4. She indicated that she contacted OSC on January 3, 2023, at which
point OSC informed her that it had sent its close-out letter to her on
October 12, 2022, and reattached the close-out letter. Id. In so doing, she
indicated on the online questionnaire that she was asserting facts from her
personal knowledge and declared under penalty of perjury that the facts stated in
her pleading were true and correct. Id. at 3.
¶9 A declaration subscribed as true under penalty of perjury, if uncontested,
proves the facts it asserts. Woodall v. Federal Energy Regulatory Commission,
30 M.S.P.R. 271, 273 (1986). The record does not contain evidence supporting a
finding that the appellant actually received OSC’s email attaching its close -out
letter on October 12, 2022, and the appellant’s statement that she did not receive
the close-out letter until January 3, 2023 is uncontested. 5 Accordingly, we find
that the appellant has proven, through her sworn statement, that she was not
notified of the close-out letter until she contacted OSC on January 3, 2023.
¶10 Having found that the appellant’s sworn statement demonstrates that she
was first notified of OSC’s close-out letter on January 3, 2023, we find that her
5
The appellant provided a copy of OSC’s October 12, 2022 email attaching its
close-out letter, which was properly addressed to her email address, but there is no
evidence in the record contradicting her assertion that her receipt of that email was
delayed. IAF, Tab 1 at 12. The appellant did not dispute that she received OSC’s other
emails, including OSC’s October 12, 2022 emails acknowledging receipt of her
complaint and OSC’s January 3, 2023 email reattaching its close-out letter. IAF, Tab 1
at 13-14, 17-18, Tab 4 at 11. Nonetheless, the fact that the appellant received OSC’s
other emails does not establish that she also received OSC’s October 12, 2022 email
attaching its close-out letter on the date it was issued.
6
appeal was timely filed. Because the appellant was notified of OSC’s close-out
letter more than 5 days after its issuance, she was required to submit her appeal
within 60 days of the date of this notice. 5 C.F.R. § 1209.5(a)(1). She submitted
her appeal 15 days later, on January 18, 2023. IAF, Tab 1. Thus, we find that it
was timely filed after she received notice of OSC’s close-out letter.
We remand the appeal for the administrative judge to further develop the record
and make findings on the issue of jurisdiction.
¶11 Because we find that the appeal was timely filed, we turn to the issue of
jurisdiction. The appellant may establish jurisdiction over this IRA appeal if she
demonstrates by preponderant evidence that she exhausted her administrative
remedy before OSC and makes nonfrivolous allegations of the following: (1) she
made a protected whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected whistleblowing activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the
agency’s decision to take or fail to take, or threaten to take or fail to take, a
personnel action. 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Chambers v. Department
of Homeland Security, 2022 MSPB 8, ¶ 14; Lewis v. Department of Defense,
123 M.S.P.R. 255, ¶ 7 (2016); Salerno v. Department of the Interior,
123 M.S.P.R. 230, ¶ 5 (2016); 5 C.F.R. § 1201.57(a)(1), (b), (c)(1); see Hessami
v. Merit Systems Protection Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020). In the
initial decision, the administrative judge did not address the issue of jurisdiction
because she found that the appeal was untimely filed. The record, as developed
to this date, does not provide a sufficient basis for determining whether the
appellant has established all of the elements of Board jurisdiction over her IRA
appeal. Thus, we remand the appeal for the administrative judge to further
develop the record and make findings on the issue of jurisdiction. If the
administrative judge determines that the appellant established Board jurisdiction
over her IRA appeal, she is entitled to a hearing on the merits of her claim, which
she must prove by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5.
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ORDER
¶12 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.