Mona Agamez v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONA AGAMEZ, DOCKET NUMBER
Appellant, DE-0714-22-0050-I-1
v.
DEPARTMENT OF VETERANS DATE: April 3, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tyler J. Sroufe , Esquire, Dallas, Texas, for the appellant.
Daniel Morvant , Esquire, and Sean A. Safdi , Esquire, Denver, Colorado,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision, and REMAND the case to the Denver Field Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The agency removed the appellant effective October 29, 2021, under the
authority of 38 U.S.C. § 714. Initial Appeal File (IAF), Tab 8 at 9. The appellant
received notice of the agency’s decision the same day. Id. at 4, 12. On
November 24, 2021, the appellant filed this appeal challenging the removal,
alleging that it “was motivated by Title VII discrimination and retaliation.”
IAF, Tab 1 at 6. The administrative judge issued an order on timeliness in which
he informed the appellant that she had 10 business days from the date of the
removal to file her appeal, observed that it appeared she had untimely filed,
described the circumstances under which the deadline could be waived, and
ordered both parties to respond. IAF, Tab 3. Both parties did so. IAF, Tabs 7-8.
The administrative judge then issued an initial decision finding the appeal was
untimely filed by 7 business days, or 9 calendar days. IAF, Tab 9, Initial
Decision at 2-3. He reasoned that, under 38 U.S.C. § 714, the appellant had
10 business days from the date of her removal to file a Board appeal. Id.The appellant has filed a petition for review, arguing that she established
good cause for her delay in filing, and the agency has responded. Petition for
Review (PFR) File, Tabs 1, 3. Because the appellant appeared to raise a claim of
discrimination and/or retaliation in violation of equal employment opportunity
(EEO) statutes, the Office of the Clerk of the Board issued an order to the parties
to indicate whether the appellant had filed an EEO complaint of her removal with
the agency. PFR File, Tab 5. Both parties responded and informed the Board
that the appellant filed an EEO complaint after she filed her initial appeal with
the Board. PFR File, Tab 6 at 4, Tab 7 at 4.
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DISCUSSION OF ARGUMENTS ON REVIEW
An appellant files what is known as a mixed case when, as here, she seeks
review of a matter within the Board’s appellate jurisdiction and also raises a
claim of discrimination or retaliation in violation of EEO statutes. Wilson v.
Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 12, 25. An appellant has two
options when filing a mixed case: (1) she may initially file a mixed-case EEO
complaint with her employing agency followed by an appeal to the Board; or
(2) she may file a mixed-case appeal with the Board and raise her 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 first
filed an appeal with the Board regarding her removal in November 2021.
IAF, Tab 1. She filed her EEO complaint concerning her removal with her
agency in January 2022. 2 PFR File, Tab 6 at 4, Tab 7 at 4. Therefore,
she effectively elected the Board as the forum in which to adjudicate her removal.
After 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. Those regulations
provide that mixed-case appeals must be filed within 30 days of 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, ¶ 19; 5 C.F.R.
§ 1201.154(a). The appellant received the agency’s removal decision on
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The agency has indicated that it dismissed the appellant’s EEO complaint on the basis
that she had previously appealed her removal to the Board. PFR File, Tab 6 at 4, 9-10.
The appellant filed an appeal of the agency’s dismissal to the Equal Employment
Opportunity Commission’s Office of Federal Operations, which affirmed the dismissal
of her claims challenging her proposed removal and removal, but remanded most of the
remaining claims in her EEO complaint to the agency for processing. PFR File, Tab 6
at 4, 16, 18-19, Tab 7 at 4.
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October 29, 2021, and it was effective the same day; therefore, the appellant’s
30-day time period for filing a Board appeal began on that date. IAF, Tab 8 at 9,
12. The appellant filed her mixed-case appeal 26 days later, on November 24,
2021, IAF, Tab 1, and thus it was timely filed. Accordingly, we remand the
appeal for further adjudication.
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.